Thursday, October 16, 2014

Letter to NJ Pensions: Should Gibbsboro's lawyers' PERS termination be retroactive to 2008?

It looks as though Gibbsboro recently took Municipal Prosecutor Higgins and Public Defender Wiggington off the PERS pension rolls because of an investigation by the Pension Fraud and Abuse Unit.  My questions are: a) Will the Pension Fraud and Abuse Unit push for these lawyers' removal retroactive to 2008? and b) If not, would there be a financial benefit to PERS if I were to file a lawsuit to compel retroactive removal?  My letter to the Pension Fraud and Abuse Unit follows:

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New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
732-873-1251
paff@pobox.com

October 16, 2014

Marc Greenfield
Pension Fraud and Abuse Unit
via e-mail

Dear Mr. Greenfield:

I chair the New Jersey Libertarian Party's Open Government Advocacy Project.  We have recently been investigating the issue of municipal governments', despite the 2007 enactment of N.J.S.A. 43:15A-7.2, seeming unwillingness to wean their independent professionals, such as municipal prosecutors and public defenders, from PERS enrollment.

As a starting point, we began our investigation with Camden County lawyers Timothy Higgins and Charles Wiggington who serve, respectively, as municipal prosecutor and public defender for the Borough of Gibbsboro.  The blog articles we have published so far on our investigation are here and here.

In summary, we have determined that both Higgins and Wiggington were certified by Gibbsboro as being PERS eligible until their termination from PERS effective August 30, 2014.  This morning, I received, via an OPRA request to Gibbsboro, your August 18, 2014 e-mail to Borough Clerk Anne Levy and your colleague Kristin Bell's August 13, 2014 letter to the Borough.  Both the e-mail and the letter are on-line here.

From reviewing all the material, it appears to me that Gibbsboro was carrying Higgins and Wiggington on the PERS rolls, and probably intended to keep carrying them, until the Pension Fraud and Abuse Unit recently decided to conduct its investigation into these lawyers' PERS eligibility.  Under the pressure of your Unit's investigation, Gibbsboro finally threw in the towel and decided to remove the two lawyers from the PERS rolls.

While this is a good thing, it leaves open the question of whether Higgins' and Wiggington's separation from PERS ought to have been retroactive to 2008.  It seems to us at least arguable that if Higgins and Wiggington are not now eligible for PERS, they probably have not been eligible for the last six or so years.

As a public service, we may be interested in filing a lawsuit in lieu of prerogative writs seeking an order compelling the State to retroactively remove Higgins and Wiggington from the pension rolls on the proper date in 2008.  Similarly, we might investigate filing citizen complaints, in accordance with R.7:2-2(a)(1), against Gibbsboro's Certifying Officer and Certifying Officer's Supervisor if they certified to Higgins's and Wiggington's PERS eligibility when it was plain that they were not eligible. Before embarking on either of these paths, we would like to ask two questions.  First, is the Pension and Fraud Unit's intent to seek retroactive removal of Higgins and Wiggington from the PERS rolls or are you satisfied with these lawyers' removal from the PERS effective August 30, 2014?

Second, if your Unit is not seeking to take any further action and is content with the August 30, 2014 separation date, would a successful effort on our part to roll these lawyers' termination dates back to 2008 have any actual effect on the Pension System?  We do not wish to commence a lawsuit unless success would yield a financial benefit to the PERS and its legitimate enrollees.

Thank you very much for your attention to this matter.  I look forward to hearing from you.

Very truly yours,

John Paff

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